01971639
01-28-1999
Margaret S. Harrigan, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.
Margaret S. Harrigan v. Department of the Treasury
01971639
January 28, 1999
Margaret S. Harrigan, )
Appellant, )
)
v. ) Appeal No. 01971639
) Agency No. 97-3015
Robert E. Rubin, )
Secretary, )
Department of the Treasury, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning her complaint of unlawful employment discrimination,
in violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. �2000e et seq., and the Rehabilitation Act of 1973, as amended, 29
U.S.C. �791 et seq. The final agency decision was received by appellant
on November 25, 1996. The appeal was postmarked December 13, 1996.
Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)), and is
accepted in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint.
BACKGROUND
Appellant contacted an EEO counselor on August 21, 1996, regarding
allegations of discrimination. Specifically, appellant alleged that she
was discriminated against when (1) on August 8, 1995 appellant's Branch
Chief asked her if she wished to relocate to a different position as a
remedy to her harassment claim; (2) on May 31, 1996, appellant's Section
Chief asked her if she wanted to relocate her desk; and (3) appellant
suffered depression, loss of wages and accrued sick and vacation leave
as a result of the harassment which was the subject of EEO complaint
TD 96-3006. Informal efforts to resolve appellant's concerns were
unsuccessful. Accordingly, on October 7, 1996, appellant filed a formal
complaint alleging that she was the victim of unlawful employment
discrimination on the bases of reprisal (prior EEO activity), and mental
disability (unspecified).
On November 21, 1996, the agency issued a final decision (FAD) dismissing
appellant's complaint on the grounds that it failed to state a claim;
that it raised issues that were pending before the agency; that it was
untimely; and for failure to bring the matter to the attention of an
EEO Counselor. Specifically, the agency determined that allegations (1)
and (2) that appellant was asked to move to a different position and to
relocate her desk, do not state a claim of employment discrimination.
The agency found that appellant was not harmed by the agency's actions.
Also with respect to allegation (1) the agency found that the incident
described therein, was the subject of prior complaint TD 96-3006 filed
by appellant in October 1995. In said complaint, appellant alleged
that she was subjected to retalitory harassment between July 5, 1995
and August 28, 1995. The FAD determined, therefore that allegation
(1) of the instant complaint occurred during the time period of alleged
discrimination at issue in complaint # TD 96-3006. The FAD dismissed the
allegation on the grounds that the issue was pending before the agency.
Alternatively, the agency dismissed allegations (1) and (2) as untimely.
The agency determined that appellant failed to initiate contact with an
EEO Counselor concerning said allegations within forty-five (45) days
of the alleged discriminatory event as prescribed by EEOC Regulations.
The agency was not persuaded by appellant's explanation for her delay
in seeking counseling. Appellant claimed that she only became aware of
her right to file a complaint on or about August 21, 1996 when she met
with her attorney of record.
Finally, the agency determined that allegation (3) of appellant's
complaint failed to state a claim. Specifically, the agency found that
allegation (3) challenged the processing of her prior discrimination
complaint. The agency found that appellant alleged that because the
agency failed to take appropriate action against the individuals who
allegedly discriminated against her, her medical condition was exacerbated
and she was forced to use her sick and annual leave.
ANALYSIS AND FINDINGS
A complaint states a claim under EEOC Regulation if the complainant is
an aggrieved employee and has alleged employment discrimination covered
by the EEO statutes. See Hobson v. Department of the Navy, EEOC Request
No. 05891133 (March 2, 1990). The United States Supreme Court has held
that an employee is aggrieved, or has standing to file a complaint, when
the employee has suffered a personal loss or harm with respect to a term,
condition, or privilege of employment. See Riden v. Department of the
Treasury, EEOC Request No. 05970314 (October 2, 1998). Appellant must
allege and show an injury in fact. Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that an aggrieved
person initiate contact with a Counselor within forty-five (45) days of
the date of the matter alleged to be discriminatory or, in the case of
a personnel action, within forty-five (45) days of the effective date
of the action. EEOC regulation 29 C.F.R. �1614.105(a)(2) permits
the time period to be extended under certain circumstances and 29
C.F.R. �1614.604(c) provides that the time limits in Part 1614 are
subject to waiver, estoppel and equitable tolling.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Ball v. United States Postal
Service, EEOC Request No. 05880247 (July 6, 1988). Thus, the limitation
period is not triggered until a complainant should reasonably suspect
discrimination, but before all the facts that would support a charge of
discrimination have become apparent.
The record indicates that on August 21, 1996, appellant initiated EEO
contact regarding allegation (1) which allegedly occurred on August
8, 1995 and allegation (2) which allegedly occurred on May 31, 1996.
In accordance with EEOC Regulations, appellant should properly have
sought counseling for allegation (1) on or before September 22, 1995
and on or before July 15, 1996 for allegation (2). Upon review of
the record herein, we determine that appellant had or should have had a
reasonable suspicion of discrimination concerning allegations (1) and (2)
prior to her EEO contact on August 21, 1996. Appellant has offered no
persuasive evidence for her delay in seeking counseling. In that regard,
we find that appellant's EEO contact concerning allegations (1) and (2)
was untimely and properly dismissed pursuant to 29 C.F.R. �1614.107(b).
Because we determine that allegations (1) and (2) were untimely raised,
we find it unnecessary to address the agency's dismissal on alternative
grounds.
Allegation (3) alleges that as a result of the agency's failure to cure
the harassment which is the subject of prior complaint TD 96-3006, she
suffered depression, loss of wages and accrued sick and vacation leave.
We find that appellant's allegations amount to a claim for compensatory
damages which should be raised within the context of her prior complaint.
We find for the reasons stated herein, that the agency's dismissal of
allegation (3) was proper. To the extent that appellant is challenging
the processing of her prior complaint we refer appellant to EEO Management
Directive (MD) 110 at 4-8 (October 22, 1992) which requires the agency to
refer a complainant alleging improper processing to the agency official
responsible for the quality of complaints processing.
CONCLUSION
Accordingly, the agency's decision dismissing appellant's complaint is
hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (MO795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive a
timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and any supporting documentation must be submitted with your
request for reconsideration. The Commission will consider requests
for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. �1614.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that you have the right to file
a civil action in an appropriate United States District Court WITHIN
NINETY (90) CALENDAR DAYS from the date that you receive this decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. If you file a civil action,
YOU MUST NAME AS THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE
OFFICIAL AGENCY HEAD OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS
OR HER FULL NAME AND OFFICIAL TITLE. Failure to do so may result in
the dismissal of your case in court. "Agency" or "department" means the
national organization, and not the local office, facility or department
in which you work. If you file a request to reconsider and also file a
civil action, filing a civil action will terminate the administrative
processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
January 28, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations